Thread: Are background checks discriminatory?

Is it discriminatory to do a background check and exclude someone because of their criminal history because minorites are convicted of crimes at a higher rate than whites?

On Jan. 29, 2013, OFCCP issued Directive 306, notifying federal contractors and subcontractors that use of criminal background checks to screen applicants for open positions may violate Title VII. OFCCP noted that because racial and ethnic minorities are arrested and convicted at a higher rate than whites, excluding job seekers based upon their criminal history may be discriminatory.

OFCCP indicated its intent to follow the EEOC?s Enforcement Guidance on the use of arrest and conviction records issued on April 25, 2012. In that Guidance, EEOC noted that use of criminal background checks can lead to: (1) disparate treatment (e.g., intentionally treating a white job applicant with a criminal conviction differently than a minority job applicant); or (2) disparate impact (e.g., a neutral policy of excluding job applicants with criminal histories, but such policy disproportionately screens out certain racial or ethnic groups). To avoid claims of disparate impact, an employer?s policy or practice of excluding applicants based upon criminal history must be job-related and consistent with business necessity.

OFCCP stated it is aware of contractors posting job announcements that categorically exclude applicants with arrest or conviction records or require applicants to have a ?clean? criminal record. OFCCP believes these practices likely violate federal discrimination laws.

Also of note, OFCCP follows EEOC?s recommendation that employers not ask about criminal convictions on job applications. Further, OFCCP suggests that if an employer asks about an individual?s criminal history at any point during the application process, the employer limit the inquiry to convictions that are related to the job in question and are consistent with business necessity.

Current OFCCP M.O. is to seek broad employment-related information as part of every audit, including seeking information about maternity leaves, religious accommodations, treatment of individuals with disabilities and veterans, as well as many other employment practices. Will OFCCP now add to its audit checklist information about the contractor?s use of criminal background checks?

OFCCP to focus on criminal background checks - Lexology

These federal agencies reason that the use of criminal background checks can lead to a disparate impact on minority job applicants. According to these government agencies, in order for an employer to avoid claims that using a criminal background check is discriminatory, they must show that excluding applicants based upon criminal history is job-related and consistent with business necessity.

And the EEOC for its part is threatening lawsuits against companies which employ background checks.

http://netrightdaily.com/2013/02/bac...tion-agencies/

Originally Posted by GloriaInTX

Is it discriminatory to do a background check and exclude someone because of their criminal history because minorites are convicted of crimes at a higher rate than whites?

No.

Most jobs that do require background checks are either dealing with money, narcotics, and kids/elderly. Why would any employer in there right mind hire someone who has a criminal background especially if they are going to be responsible for any of the listed above? Thats just plain stupid, thats asking someone to steal or harm.

Absolutly not. There are a lot of reasons minorities are convicted of crimes at a higher rate. Its not like they are being falsely convicted and didn't commit a crime. This just makes no sense to me.

I don't think it is discrimination. If a job requires a background check any eligible applicant is subject to it. Don't commit a crime if you don't want it to be found out

I had to read it a couple of times to actually believe that is what it really says. I think it is ridiculous. Our Federal Government at work proving how stupid they can be. When you think about it what Business wouldn't have a necessity to hire someone without a criminal background? Even laborers and construction workers are using expensive tools that could be stolen if you hire a thief. Any company that wants to do a background check should be able to. They may choose to hire someone with a criminal background anyway but at least they should know what they are getting into.

Only criminals would have a reason to pull the discrimination card, not people, regardless of colour of skin, who have nothing to hide.

I do believe that minorities get convicted of crimes at a higher rate than whites, perhaps even unfairly. However, I would say that is the problem they need to address, not the fact that companies are using background checks. This just seems so backwards to me.

Saw this today and it made me laugh so I thought I'd share.

In reading it doesn't appear that the problem is them vetting out CONVICTED criminals, but that the background checks were automatically disqualifying people who had been arrested but not convicted. And yes, I can see that being a race related thing. And yes, I would be outraged if I was kept out of job after job because the wrong person got arrested one day, and I happened to be the unlucky guy, though I was innocent. They just won over 3 Mil in a lawsuit from Pepsi, so of course it makes sense to be covering their own butts on this, if they are dinging other companies for discriminatory hiring practices.

Pepsi's EEOC violation isn't just about discrimination - CBS News Interesting perspective.

Originally Posted by Potter75

In reading it doesn't appear that the problem is them vetting out CONVICTED criminals, but that the background checks were automatically disqualifying people who had been arrested but not convicted. And yes, I can see that being a race related thing. And yes, I would be outraged if I was kept out of job after job because the wrong person got arrested one day, and I happened to be the unlucky guy, though I was innocent. They just won over 3 Mil in a lawsuit from Pepsi, so of course it makes sense to be covering their own butts on this, if they are dinging other companies for discriminatory hiring practices.

Pepsi's EEOC violation isn't just about discrimination - CBS News Interesting perspective.

If it was a race related thing they wouldn't even have gotten to the point of doing the background check on the person. Every place that has ever done a background check on me for a job interviewed me first. Background checks cost companys money, last time i checked they usually don't like to spend money doing a background check on someone they wouldn't hire anyways.